Horvath Towers V, LLC v. Indiana Twp. Bd. of Supers. ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Horvath Towers V, LLC, :
Appellant :
:
v. :
:
Indiana Township Board of :
Supervisors and Paul Didomenico, :
John Whelan, Darlene Whelan, NPDCO :
LLC, Rosalyn Didomenico, Pamela : No. 1579 C.D. 2019
Didomenico and Nick Didomenico : Submitted: May 15, 2020
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: June 10, 2020
Horvath Towers V, LLC (Applicant) appeals from the Allegheny County
Common Pleas Court’s (trial court) October 16, 2019 order affirming the Indiana
Township (Township) Board of Supervisors’ (Board) decision denying a conditional
use application to construct a communications tower (Application) in the Township.
There are two issues before this Court: (1) whether Applicant satisfied all Township
Zoning Ordinance1 (Ordinance) requirements and whether the objectors failed to
meet their burden of establishing that approval would substantially affect the
community’s health, safety and welfare; and (2) whether the Board’s denial
constitutes a violation of the Telecommunications Act of 19962 (TCA). After review,
we affirm.
1
Township Ordinance No. 368, as amended.
2
47 U.S.C. §§ 151-624.
Applicant is a communications tower infrastructure provider that owns
and operates thousands of communications tower sites. On September 11, 2018,
Applicant and Pittsburgh SMSA Limited Partnership d/b/a Verizon Wireless
(Verizon)3 filed the Application for a telecommunications tower facility
(Communications Facility4) at 395 Francioni Hill Lane in Glenshaw, Pennsylvania
(Property). The Property is 7.446 acres and is located in the Township’s Medium
Density Residential (MDR) zoning district.5 Applicant entered into an Option and
Land Lease Agreement (Lease) to lease a 100’ x 100’ portion of the Property (Leased
Premises) for the proposed Communications Facility from owners Valentino and
Norma Francioni (Lessors). On September 22, 2018, the Township’s engineer
informed Applicant that the Application was incomplete. On January 17, 2019,
Applicant submitted the complete Application.
On January 23, 2019, the Township Planning Commission
recommended the Application be denied. On February 12, 2019, the Board held a
public hearing on the Application. See Reproduced Record (R.R.) at 3a. Applicant
presented testimony and documentary evidence in support of its Application.
Numerous residents presented lay and expert testimony and documentary evidence in
opposition (Objectors) to the Application. At the hearing’s conclusion, the Board
denied the Application on the basis that Applicant had not met its burden of
3
Verizon did not appeal from the Board’s decision.
4
Section 201 of the Ordinance defines “Communications Facilities” as:
Any communications tower and its associated structures (Antenna(c))
operated by any person, agency or corporation, not otherwise a public
utility regulated by the Pennsylvania Public Utility Commission, who
or which furnishes mobile domestic cellular radio telecommunications
services, or other communications services, including commercial
radio and television, of any type for public or private use.
Reproduced Record at 485a.
5
Section 302 of the Ordinance permits a Communications Facility as a conditional use in an
MDR zoning district.
2
demonstrating that it satisfied the requirements of the following subsections of
Section 511.B.1. of the Ordinance: a, c, d, f, i, j, l, m, n, o and p; that Applicant did
not demonstrate compliance with the General Criteria set forth in Section 511.A.1.b
of the Ordinance; that Objectors showed a high probability that the proposed use
would create an adverse impact; and that denial of the Application did not violate the
TCA. Applicant appealed to the trial court. On October 16, 2019, the trial court
denied the appeal and affirmed the Board’s decision, concluding that Applicant failed
to satisfy the requirements of Section 511.B.1.a of the Ordinance. The trial court did
not address the Board’s conclusions that Applicant had not demonstrated compliance
with other Ordinance provisions. Applicant appealed to this Court.6
Initially, this Court has explained:
‘[A] conditional use is nothing more than a special
exception which falls within the jurisdiction of the
municipal governing body rather than the zoning hearing
board.’ [In re] Thompson, 896 A.2d [659,] 670 [(Pa.
Cmwlth. 2006)]. Just like special exceptions, a conditional
use is not an exception to a municipality’s zoning
ordinance, ‘but rather a use to which [an] applicant is
entitled[,] provided the specific standards enumerated in the
ordinance for the [conditional use] are met by the
applicant.’ Id. (citations omitted). In recognition of the
similarity between special exceptions and conditional uses,
courts apply the same standards of proof to both types of
applications.
The applicable standard of proof requires an applicant to
demonstrate that the use proposed in an application
complies with the specific criteria of the particular
ordinance. An applicant who [sic] satisfies this prima facie
burden is entitled to approval, unless objectors in the
proceeding offer credible and sufficient evidence indicating
that the proposed use would have a detrimental impact on
6
“Generally, where the trial court takes no additional evidence, appellate review in a land
development appeal is limited to determining whether the local governing body committed an error
of law or an abuse of discretion.” In re AMA/Am. Mktg. Ass’n, 142 A.3d 923, 930 n.5 (Pa. Cmwlth.
2016).
3
public health, safety, and welfare. In referring to ‘specific’
criteria in a conditional use provision, we have observed
that ‘[s]pecificity is the essential characteristic of operative
[conditional use] requirements in an ordinance. The
Pennsylvania Supreme Court has long defined a special
exception as one allowable where requirements and
conditions detailed in the ordinance are found to exist.’
Bray v. Zoning Bd. of Adjustment, . . . 410 A.2d 909, 911
([Pa. Cmwlth.] 1980) (emphasis in original).
Williams Holding Grp., LLC v. Bd. of Supervisors of W. Hanover Twp., 101 A.3d
1202, 1212 (Pa. Cmwlth. 2014) (citations omitted). It is an applicant’s burden to
prove that the proposed plan complies with all of the zoning ordinance’s objective
requirements. Thompson.
“In conditional use proceedings where the trial court has taken no
additional evidence, the Board is the finder of fact, empowered to judge the
credibility of witnesses and the weight afforded to their testimony; a court may not
substitute its interpretation of the evidence for that of the Board.” In re Richboro CD
Partners, L.P., 89 A.3d 742, 754-55 (Pa. Cmwlth. 2014). This Court “must view the
evidence in a light most favorable to the party who [sic] prevailed before the fact-
finder, giving that party the benefit from all reasonable inferences arising from the
evidence.” Marshall v. Charlestown Twp. Bd. of Supervisors, 169 A.3d 162, 169 (Pa.
Cmwlth. 2017).
Applicant contends that it met its burden of demonstrating compliance
with all objective conditional use criteria. Applicant addresses each of the criteria
individually, describing its basis for asserting error.
At the outset, Section 511.A.1 of the Ordinance provides, in relevant
part:
a. . . . All applications for conditional uses shall comply
with the specific standards set forth in this Ordinance.
4
b. Standards: In addition to any express standards set forth
in this Ordinance, a conditional use application must
comply with the following:
i. The applicant will reduce any adverse impacts on
existing uses to the maximum extent feasible, including
but not limited to, developing measures that address
lighting and glare, hours of operation, refuse storage and
removal and other similar characteristics.
ii. The use can be accommodated on the site without
design modifications or variances.
iii. Unless otherwise specified, buffer yards shall comply
with Article VI of this Ordinance.
iv. At a minimum, areas of the property not covered by
buildings or impervious surface shall be landscaped as
per Article VI of this Ordinance.
v. The use has or provides off-street parking on the same
property as the use and in compliance with Article VIII
of this Ordinance.
vi. Primary access points to the property shall be located
as far from the road(s) and intersection(s), and sight
triangle areas, as required by Title 67 (PennDOT
Specifications).
R.R. at 537a-538a. With respect to conditional use applications for communication
facilities, Section 511.B.1 of the Ordinance states, in pertinent part:
The following provisions shall apply to communication
facilities:
a. The minimum site area required for a single
communication facility shall be one (1) acre for each 100
feet of height or a portion of 100 feet of height. . . . The
tower site shall also be capable of meeting the requirement
of subsection ([] F) hereinafter set forth.
....
c. For Communication Facilities, shared use of towers and
tower sites shall be encouraged. If shared use of an existing
or approved tower or an existing or approved tower site is
5
not proposed, the applicant shall demonstrate that the
proposed equipment cannot be accommodated on an
existing or approved tower or an existing or approved tower
site for the following reasons:
i. The proposed equipment would exceed the structural
capacity of the existing or approved towers and
reinforcement of the existing or approved towers
cannot be accomplished at a reasonable cost.
ii. The proposed equipment will cause RF (Radio
Frequency) interference with other existing or
proposed equipment for that tower or that existing or
approved tower site and the interference cannot be
prevented at a reasonable cost.
iii. Existing or approved towers or the existing or
approved tower sites do not have adequate space to
accommodate the proposed equipment.
iv. Addition of the proposed equipment would result in
NIER (Non-Ionizing Electromagnetic Radiation)
levels that exceed any adopted local, [s]tate, or
[f]ederal emissions standards.
v. There are other valid reasons that make it
impractical to place the proposed equipment on any
existing or proposed tower or any existing or approved
site.
d. Any approval of a Communication Facility shall be
subject to the agreement of the applicant to construct the
tower with the capacity to accommodate additional
communication facilities which might be needed in the
future by the applicant or by another party.
....
f. Communication facilities and their associated structures
may exceed the height limitations of the [z]oning [d]istrict,
provided they shall be set back from any property line or
public street right-of-way a minimum distance of fifty
percent (50%) of the tower height or greater, if necessary, to
guarantee that in the event of a collapse, the structure shall
not fall on any adjacent property and all ice fall or debris
6
from the tower failure shall be contained on the
Communication Facility property.
....
i. The applicant shall submit evidence that the tower and its
method of installation has been designed by a registered
engineer and is certified by that registered engineer to be
structurally sound and able to withstand wind, earthquake
and other loads in accordance with accepted engineering
practice.
j. The tower shall be subject to any applicable Federal
Aviation Administration (FAA) and airport zoning
regulations.
....
l. All lighting shall be shielded and reflected away from
adjoining properties.
m. A minimum of two (2) off-street parking spaces shall be
provided on the Communication Facility site plus one (1)
additional off-street parking space for each on-site
personnel.
n. Existing vegetation on site shall be preserved to the
maximum extent possible, and the exterior of the fencing
enclosing the tower structure shall be landscaped to buffer
the visual impact of the tower base from adjoining
properties.
o. A minimum twenty (20) foot easement or right-of-way
for access shall be provided to the tower which is adequate
to accommodate maintenance and emergency vehicles and
which is improved with a dust free, all-weather surface
sufficient to accommodate the weight of vehicles proposed
to use the easement or right-of-way subject to approval by
the [Board]. The landowner or lessee shall maintain the
right-of-way or easement.
p. If acreage of the site permits, a Communication Facility
may be located on a lot or parcel of land devoted to another
principle [sic] use.
R.R. at 540a-543a.
7
Section 511.B.1.a of the Ordinance
Applicant first argues that it proved compliance with Section 511.B.1.a
of the Ordinance pertaining to minimum site acreage. That Section provides, in
relevant part: “The minimum [tower] site area required for a single
communication facility shall be one (1) acre for each 100 feet of height or a
portion of 100 feet of height.” R.R. at 540a (emphasis added). Applicant argues
that the “site area” is the 7.75-acre Property rather than Applicant’s 100’ x 100’
leased portion of the Property. Applicant asserts that the Ordinance
does not require [Applicant] to lease one acre for each 100’
of tower height. In fact, the word ‘lease’ is not found
anywhere in Section 201 [of the Ordinance] . . . or Section
511.B.1.[a of the Ordinance]. Conversely, the . . .
Ordinance only requires a minimum site area (not the lease
area) for a tower to measure one acre for each 100’ of tower
height.
Applicant Br. at 20 (citations omitted).
In reaching its decision, the Board considered that Applicant proposed to
lease only a 10,000-square-foot area (100’ x 100’) of the 7.75-acre Property. See
R.R. at 287a, 579a. The Board noted that Section 201 of the Ordinance defines
“tower site” as “[a]ny lot or parcel on which communications facilities are located or
proposed to be located.” R.R. at 497a. The Board further referenced Section 201 of
the Ordinance, which defines “lot” as “[a] designated parcel, tract or area of land
established by a plat, subdivision, or as otherwise permitted by law, and to be used,
developed or built upon as a unit.”7 R.R. at 489a. Moreover, the Board considered
7
This Court notes that the Ordinance does not define the terms “tract” or “plat.” However,
Black’s Law Dictionary (10th ed. 2014) defines “tract” as “[a] specified parcel of land[.]” Id. at
1720. Further, it defines “plat” as “[a] small piece of land set apart for some special purpose[,]” or
“[a] map or plan of delineated or partitioned ground; esp., a map describing a piece of land and its
features, such as boundaries, lots, roads, and easements[.]” Id. at 1337. “While it is true that zoning
ordinances are to be liberally construed to allow the broadest possible use of land, it is also true that
zoning ordinances are to be construed in accordance with the plain and ordinary meaning of their
8
“[Objectors’] testimony regarding communication facility-leased sites being taxed
separately from the parent parcel and being given a separate tax identification
number.” R.R. at 580a, Finding of Fact No. 34. The Board also relied on the Lease,
which assigns to Applicant real estate and personal property tax obligations
associated with the Leased Premises. Based on a plain reading of the Ordinance, the
Board determined that the “tower site” area was the “lot . . . on which
communications facilities are located or proposed to be located[,]” R.R. at 497a, i.e.,
the “designated parcel of land . . . established by a plat[.]” R.R. at 489a; see also
R.R. at 580a.
This Court has explained:
[A]ppellate courts reviewing a governing body’s
adjudication of a conditional use application generally
should defer to the interpretation rendered by the
governing body. ‘[A]s the entity charged with
administering a zoning ordinance,’ the governing body
possesses knowledge and expertise regarding the
ordinance. [Smith v. Zoning Hearing Bd., 734 A.2d 55,] 58
[(Pa. Cmwlth. 1999)].
Williams Holding Grp., LLC, 101 A.3d at 1213 (emphasis added; citation omitted).
See also Montgomery Crossing Assocs. v. Twp. of Lower Gwynedd, 758 A.2d 285,
288 (Pa. Cmwlth. 2000) (“[A board of supervisors’] interpretation of [a zoning]
provision is entitled to substantial deference.”).
Here, the plat attached to Applicant’s Application unambiguously
described the tower site area - the only area Applicant will control under the Lease -
as 100’ x 100’. See R.R. at 311a; see also R.R. at 287a. Given that Applicant’s
tower’s height is to reach 190 feet, the minimum tower site area must be almost 2
acres - approximately 87,120 square feet. Because the proposed tower site’s 10,000-
words.” Zappala Group, Inc. v. Zoning Hearing Bd. of Town of McCandless, 810 A.2d 708, 710
(Pa. Cmwlth. 2002).
9
square-foot dimensions do not meet this condition, the Board properly concluded that
Applicant failed to satisfy the requirement. Having concluded that Applicant did not
establish that the proposed use met the requirements of Section 511.B.1.a of the
Ordinance, this Court need not consider Applicant’s compliance with the Ordinance’s
other requirements.8
Applicant next argues that the Board’s denial of its Application violates
the TCA because a locality cannot deny an application if, in so doing, it would have
the effect of prohibiting wireless services.
TCA
The United States Third Circuit Court of Appeals has explained:
The TCA expressly preserves the authority of state and
local governments to regulate land use and zoning, but
places several substantive and procedural limits upon that
authority when exercised in relation to personal wireless
service facilities. APT Pittsburgh Ltd. v. Penn Twp. Butler
C[]ty. of P[a.], 196 F.3d 469, 473 (3d Cir. 1999). One such
substantive requirement is [S]ection 332(c)(7)(B) of the
TCA, which states:
8
Notwithstanding, it is clear that Applicant did not comply with other mandatory conditions.
For example, Section 511.B.1.j of the Ordinance provides that “[t]he tower shall be subject to any
applicable [FAA] and airport zoning regulations.” R.R. at 542a. In its application, Applicant
claimed that the FAA had approved the proposed tower. See R.R. at 233a. However, the FAA’s
“Determination of No Hazard to Air Navigation” (FAA Determination) - the document Applicant
attached as Exhibit C to its Application evidencing the FAA’s approval - expired December 13,
2018. See R.R. at 270a-271a. The FAA Determination stated that a “REQUEST FOR
EXTENSION OF THE EFFECTIVE PERIOD OF THIS DETERMINATION MUST BE E-FILED
AT LEAST 15 DAYS PRIOR TO THE EXPIRATION DATE.” R.R. at 271a. At the February 12,
2019 hearing, Applicant provided no evidence that the FAA Determination had been extended.
Further, with respect to Section 511.B.1.o of the Ordinance, which requires a minimum of a
20-foot easement or right-of-way for emergency vehicle tower access, Applicant proposed to use
Francioni Hill Lane, a private road, since neither the Property nor the Leased Premises have
frontage on a public road. However, Lessors do not own Francioni Hill Lane in fee, and Applicant
did not establish its right to use the private road for such purposes. See R.R. at 149a-154a, 169a-
174a, 246a, 249a. Additionally, the Board, as fact finder, credited Objectors’ evidence showing that
in numerous locations along Francioni Hill Lane, the cartway is far narrower than the required 20-
foot width.
10
(i) The regulation of the placement,
construction, and modification of personal
wireless service facilities by any [s]tate or local
government or instrumentality thereof -- . . .
(II) shall not prohibit or have the effect of
prohibiting the provision of personal
wireless services.
47 U.S.C. § 332(c)(7)(B). A state or local government has
effectively prohibited the provision of wireless services
where a carrier has demonstrated that (1) its facility will fill
a significant gap in service, and (2) the manner in which it
proposes to fill the significant gap in service is the least
intrusive on the values that the denial sought to serve. APT
Pittsburgh Ltd., 196 F.3d at 480.
Sprint Spectrum, L.P. v. Zoning Bd. of Adjustment of Paramus N.J., 606 F. App’x
669, 671 (3d Cir. 2015).9
There are two approaches to use when deciding if there is a
significant gap in the ability of remote users to access the
national telephone network. The ‘user-oriented’ approach
[or one-provider rule], followed by the Third Circuit,
requires the applicant to demonstrate that ‘the area the new
facility will serve is not already served by another
provider.’ Omnipoint Comm[c’ns] Enter[s.], L.P. v. Zoning
Hearing Bd. of Easttown Twp., 331 F.3d 386, 398 (3d Cir.
2003). The ‘multi-provider’ approach, which is endorsed
by the [Federal Communications Commission (]FCC[)],
requires applicants to merely show that they do not provide
reliable service in a given area, regardless of other carriers’
service in the same area. See In Re: Petition for
Declaratory Ruling to Clarify Provisions of § 332(c)(7)(B),
24 FCC Rcd 13994, Section C (F.C.C. 2009) [(2009
Declaratory Ruling)].
9
The Pennsylvania Supreme Court has explained that “the pronouncements of the lower
federal courts have only persuasive, not binding, effect on the courts of this Commonwealth -
although we certainly are bound by the decisions of the [United States] Supreme Court on questions
of federal law.” In re Stevenson, 40 A.3d 1212, 1221 (Pa. 2012).
11
Nextel Commc’ns of the Mid-Atlantic, Inc. v. Zoning Hearing Bd. of Ross Twp.,
(M.D. Pa. No. 3:14-CV-2409, filed Mar. 31, 2016), slip op. at ___, 2016 U.S. Dist.
LEXIS 44254, at *11-12.10
Recently, in Fairview Township v. Fairview Township Zoning Hearing
Board, ___ A.3d ___, (Pa. Cmwlth. Nos. 1493, 1494 C.D. 2018, filed June 2, 2020),
this Court, en banc, was confronted with the issue of whether the Third Circuit’s one-
provider rule or the FCC’s multi-provider approach should be applied therein. In
Fairview Township, an applicant submitted two separate variance requests pertaining
to proposals to construct two wireless telecommunications facilities on two separate
parcels of property. The zoning hearing board granted the variance requests, and the
township appealed. The trial court conducted a de novo hearing and, thereafter,
granted the variances, concluding that the applicant met all variance requirements for
one of the parcels, but failed to satisfy three of the five elements relative to the other.
Nonetheless, the trial court granted the variances for both properties concluding that
the TCA mandated such approval. The township appealed to this Court.
Examining the 2009 Declaratory Ruling, the Fairview Township Court
stated:
Notably, simply looking at the question of whether a service
provider has a gap in its coverage (or is attempting to
densify, expand or otherwise improve its existing service) is
not the entirety of the FCC’s ruling on what constitutes a
prohibition or effective prohibition. Significantly, in
rejecting the ‘one[-]provider’ rule, the FCC’s 2009
Declaratory Ruling states, ‘it is a violation of Section
332(c)(7)(B)(i)(II) [of the TCA] for a [s]tate or local
government to deny a personal wireless service facility
siting application solely because that service is available
from another provider.’ 2009 Declaratory Ruling at 14000
10
The Sprint Spectrum, L.P. Court declined to choose between the two approaches because
it concluded that the applicant failed to satisfy either standard. See also Liberty Towers, LLC v.
Zoning Hearing Bd. of Falls Twp., Bucks Cty., Pa., (E.D. Pa. No. 10-7149, filed Dec. 6, 2011).
12
¶ 19 (emphasis added); see also id. at 14016 ¶ 56 (stating,
‘a [s]tate or local government that denies an application for
personal wireless service facilities siting solely because
‘one or more carriers serve a given geographic market’ has
engaged in unlawful regulation that ‘prohibits or ha[s] the
effect of prohibiting the provision of personal wireless
services,’ within the meaning of Section
332(c)(7)(B)(i)(II)’) (emphasis added); id. at 14021 ¶ 71.
Additionally, the FCC stated, ‘where a bona fide local
zoning concern, rather than the mere presence of other
carriers, drives a zoning decision, it should be unaffected by
our ruling today.’ Id. at 14018 ¶ 62. Accordingly, given
this language in the FCC’s 2009 Declaratory Ruling, we
agree with the [t]ownship that the TCA does not ‘trump’ the
[Municipalities Planning Code (MPC)11] with respect to the
placement of wireless telecommunications towers.
Despite quoting the ‘solely because’ language from the
FCC’s [2009 Declaratory R]uling in its opinion, the trial
court, in concluding that an applicant need establish only a
gap or other deficiency in its own coverage in order to
establish entitlement to a variance, took the FCC’s
statement out of context and did not consider the entirety of
the FCC’s statement as to what constitutes a prohibition or
effective prohibition. This was error. The FCC’s [2009]
Declaratory Ruling directs us to look at what ‘drives’ the
zoning decision or, in other words, on what the decision is
based.
Id. at ___, slip op. at 18-19 (footnote omitted).
In holding that the TCA did not preempt application of the zoning
ordinance, the Fairview Township Court explained:
In short, the presence of other carriers, or the condition of
[the service provider’s] coverage, did not play a role in the
variance determinations for either [of the subject
properties]. Thus, because the prohibition of services here
was not based ‘solely on the presence of another carrier’
and because ‘a bona fide local zoning concern, rather than
the mere presence of other carriers, drives [this] zoning
decision,’ the decision to deny the variances does not
11
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
13
‘prohibit’ or ‘effectively prohibit’ the provision of wireless
services in contravention of the TCA and, therefore, ‘should
be unaffected by [the FCC’s] ruling.’ See 2009 Declaratory
Ruling at 14017 ¶ 60, 14018 ¶ 62. Indeed, we have stated
that ‘[n]ot every municipality’s denial of an application to
build a wireless facility violates the TCA.’ Vineyard Oil &
Gas Co. v. N[.] E[.] Twp. Zoning Hearing Bd., 215 A.3d []
77, 87 (Pa. Cmwlth. 2019) (citing APT); see also APT
[Pittsburgh Ltd.], 196 F.3d at 478 (stating that to
‘[i]nterpret[] the TCA’s ‘effect of prohibiting’ clause to
encompass every individual zoning denial simply because it
has the effect of precluding a specific provider from
providing wireless services, however, would give the TCA
preemptive effect well beyond what Congress intended[.’]).
Id. at ___, slip op. at 20-21.12
The Fairview Township Court concluded that the township’s zoning
hearing board’s denial of the requested variances was “not ‘solely because’ the
service [was] available from another provider, but, rather, [was] based on a bona fide
local zoning concern. Indeed, with respect to [one parcel], the trial court found that
[the applicant] failed to establish three of the five elements necessary for a variance.”
Id. at ___, slip op. at 19. The Fairview Township Court expounded:
These reasons have nothing to do with whether service is
available from another provider or whether [the service
provider] needed to densify, expand or otherwise improve
its network. Consequently, the denial of the variances
pursuant to the MPC was not based solely on the presence
of other providers or the existence of some coverage by [the
service provider].
Id. at ___, slip op. at 19-20.
Similarly, in the instant matter, the Board’s Application denial had
nothing to do with whether service was available from another provider or whether
12
Based on this disposition, and the fact that the variances were not being denied solely due
to a significant gap in the applicant’s coverage or because a gap existed that was being serviced by
another provider, the Court did not reach the question of whether Pennsylvania should apply the
one-provider rule.
14
Verizon had a gap in its coverage. Rather, the Application denial was “based on a
bona fide local zoning concern.” Id., slip op. at 19. The Board found that Applicant
had failed to satisfy, inter alia, the following subsections of Section 511.B.1. of the
Zoning Ordinance: a, c, d, f, i, j, l, m, n, o and p. For these reasons, this Court
concludes that neither the trial court nor the Board violated the TCA.
For all of the above reasons, the trial court’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Horvath Towers V, LLC, :
Appellant :
:
v. :
:
Indiana Township Board of :
Supervisors and Paul Didomenico, :
John Whelan, Darlene Whelan, NPDCO :
LLC, Rosalyn Didomenico, Pamela : No. 1579 C.D. 2019
Didomenico and Nick Didomenico :
ORDER
AND NOW, this 10th day of June, 2020, the Allegheny County Common
Pleas Court’s October 16, 2019 order is affirmed.
___________________________
ANNE E. COVEY, Judge